Appeal 2006-2777
Application 10/383,603
solid and is inclusive of “wells” in a surface of the mold (Answer 3). The
Examiner further finds that Etzbach fails to show that the mold is flexed or bent to
remove the solid flakes and that the mold is made from a master mold having the
desired configuration (Answer 3-4, citing col. 13, Example 1, of Etzbach) . The
Examiner applies De Brocke for the disclosure of molding ice cubes in a variety of
shapes employing a bendable plastic or rubber mold, where the cavities or wells
are filled with the molded fluid (water) and the mold is subsequently bent or
twisted to remove the solid, frozen cubes (Answer 4). From these findings,
“[g]iven that the primary reference [Etzbach] employs a flexible mold or screen,”
the Examiner concludes that it would have been obvious to have employed a mold
“similar” to that taught by De Brocke to remove the solid material of Etzbach by
flexing the mold (Answer 4).
The initial burden rests with the Examiner of establishing some reasoning,
motivation, or suggestion to combine the references as proposed to achieve the
claimed invention. See In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614,
1617 (Fed. Cir. 1999). As correctly argued by Appellants (Br. 3-4 and 5-6), we
determine that the Examiner has resorted to speculation or impermissible hindsight
and failed to establish any basis in the references or knowledge in this art that
would have led to this combination of references. See Dembiczak, supra.
We determine that the Examiner, on this record, has failed to establish that
the “flexible screen” of Etzbach would have been more flexible that the solid
flakes formed in the “through openings” of the screen, as required by claim 1 on
appeal (Etzbach, col. 1, ll. 33-35). The Examiner only finds that the flexible screen
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Last modified: November 3, 2007